Legal Commentary

In August, I criticized the Ninth Circuit decision in In re DRAM Litigation, which dismissed a claim under the Foreign Trade Antitrust Improvements Act (FTAIA) for lack of subject matter jurisdiction, rather than for failure to state a claim, which I believe was the more appropriate ground.

Well, today, I received an e-mail from the author of the opinion, Ninth Circuit Judge Raymond Fisher, and a copy of the revised opinion, which included the following footnote:

The district court granted defendants? motion to dismiss, which was premised solely on jurisdictional grounds. It is unclear, however, whether the FTAIA is more appropriately viewed as withdrawing jurisdiction from

the federal courts when a plaintiff fails to establish proximate cause or as simply establishing a limited cause of action requiring plaintiffs to prove proximate cause as an element of the claim. Compare Empagran S.A. v.

F. Hoffman-LaRoche, Ltd., 417 F.3d 1267, 1268-69, 1271 (D.C. Cir. 2005) (affirming dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction), with In re Elevator Antitrust Litigation, 502 F.3d 47, 49-50

(2d Cir. 2007) (affirming dismissal on 12(b)(6) grounds). The Supreme Court?s decision in Empagran I provides little guidance because, although the district court had dismissed under Rule 12(b)(1), the Court did not

explicitly address whether the issue was properly viewed as one of federal question subject matter jurisdiction or of a failure to state a claim under federal law. We decline to resolve the question, because it was not argued

by the parties and in this case the result and analysis are the same. Accordingly, we assume without deciding that the district court correctly dismissed under Rule 12(b)(1).

Judge Fisher also graciously said that they welcome constructive feedback from academics. No citation for the blog or for my articles on the issue, unfortunately. But kind of nice to see that we can have some practical effect.